Court File and Parties
CITATION: Kuca v George Brown College of Applied Arts and Technology, 2024 ONSC 1884
DIVISIONAL COURT FILE NO.: 060/13
DATE: 20240329
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Laura Karen Kuca, Appellant
-and -
George Brown College of Applied Arts and Technology, Respondent
BEFORE: FL Myers J.
COUNSEL: Laura Karen Kuca, Self-represented (by phone)
Bonnie Roberts Jones, for the Respondent by videoconference
HEARD at Toronto: March 28, 2024
ENDORSEMENT
[1] Ms. Kuca was employed by George Brown College for 27 years from 1981 to 2008.
[2] On November 24, 2008 George Brown College terminated Ms. Kuca’s employment for cause.
[3] Ms. Kuca, represented, by her union OPSEU, brought a successful grievance of the termination.
[4] By award dated November 2, 2010, the arbitration board held that George Brown College did not have cause to terminate Ms. Kuca’s employment.
[5] On September 26, 2011, the arbitration board ordered George Brown College to pay Ms. Kuca compensation in the amount of $127,059 calculated as gross pay before tax.
[6] As a retiring allowance, much or all of the funds were eligible to be placed in Ms. Kuca’s Registered Pension Plan without deduction for income tax. It is not clear if anyone considered this at the time. But the need for income tax planning was understood.
[7] The arbitration board ordered George Brown College to pay the money to Ms. Kuca as she directed to minimize her taxes. The award provided expressly that Ms. Kuca’s direction was to be received by the employer within 30 days.
[8] Within ten days, on October 6, 2011, the union’s counsel provided Ms. Kuca’s tax direction to the George Brown College’s lawyer:
Here are [sic] Ms. Kuca's direction for payment of the awarded compensation. The award to be divided into 3 payments. The first payment as soon as possible. The second on or about January 15, 2012 and the third on or about January 15, 2013. Please provide interest on the second and third payment. If there is any difficulty complying with the above would you please let me know.
[9] Ms. Kuca did not direct the payments into her RPP. She might have wanted the cash. Or perhaps someone made a mistake – negligent or otherwise.
[10] George Brown College paid the first two installments by cheques to Ms. Kuca as directed. It duly withheld taxes as required by law.
[11] Ms. Kuca did not cash the cheques. Ms. Kuca says that George Brown College and her union harassed her with demands that she sign indemnity agreements and other improper issues. She had to go to the Ontario Labour Relations Board, she says, to get them to stop.
[12] The uncashed two instalment cheques became stale-dated. On June 7, 2012, Ms. Kuca’s lawyer wrote to the lawyer for George Brown College to ask it to re-issue its cheques. Counsel asked George Brown College to pay the installments into the Ms. Kuca’s RPP.
[13] George Brown College reissued the cheques but declined to pay the gross amounts into Ms. Kuca’s RPP. It says it did what Ms. Kuca directed within 30 days of its decision as ordered by the arbitration board.
[14] Ms. Kuca brought an application in the Superior Court of Justice to compel George Brown College to pay the installments into her RPP as authorized by the Income Tax Act (Canada).
[15] The court’s jurisdiction to deal with the arbitral award was set out in s. 14(19) of the Colleges Collective Bargaining Act, 2008, S.O. 2008, c. 15. That section provides, in part, that the court will enforce an arbitration award where an employer, “has failed to comply with any of the terms of the decision of an arbitrator or arbitration board.”
[16] In her decision dated January 2, 2013, Chiappetta J. held:
As there is no evidence on the record before me to demonstrate noncompliance with either the arbitration award of November 2, 2010 or the supplementary award of September 26, 2011, the application is dismissed.
[17] Chiappetta J. accepted that George Brown College had done what it had been ordered to do. She also accepted its undertaking that it would pay the third installment when it became due.
[18] By notice of appeal dated January 31, 2013, Ms. Kuca appealed from this decision. She submits that she was allowed to change her direction by the arbitration board in a letter that provided her with an option of seeking a tax ruling from the CRA. She also submits that the employer issued mistaken T4 forms to her that needed correction.
[19] Ms. Kuca recently went to Tax Court to try to have her taxes reassessed as if she or George Brown College had paid the arbitral award installments into her RPP as allowed by the Income Tax Act. The court held that because the money was not actually paid into the RPP, no deduction was allowed.
[20] For reasons that are not clear, this appeal has sat for ten years and has never been heard despite being perfected in 2013. Rule 61.13.0.1 (1) provides that the registrar shall dismiss an appeal if it is not “set down for hearing” or terminated by any means before the later of the fifth anniversary fo the filing of the notice of appeal and January 1,2021.
[21] The fifth anniversary of the notice of appeal was January 30, 2018. But for the pandemic, this appeal would have been dismissed for delay therefore on the later date January 1, 2021.
[22] It is not clear why the appeal was never heard. The phrase “set down for hearing” does not have a current meaning in the Rules. Parties used to have to take active steps to schedule an appeal hearing. It is done by the court now. Apparently neither Ms. Kuca nor George Brown College did anything to have this appeal heard.
[23] Ms. Kuca therefore seeks an extension of time to prevent the appeal from being dismissed.
[24] But there is more. It has recently occurred to both sides that the amount in issue exceeds $50,000. However, there were just two installments due before Chiappetta J. Net of tax they totaled less than $50,000. The gross amounts exceeded $50,000 in the aggregate and were payable within a year of each other. Both parties now agree that the appeal is not within this court’s monetary jurisdiction under s. 19 (1.2) of the Courts of Justice Act, RSO 1990 c C.43. I was not asked to make a finding on the point.
[25] Ms. Kuca asks me to transfer the appeal to the Court of Appeal under s. 110 of the CJA. However, transfers are not automatic. George Brown College submits that the appeal is so old and has so little merit that it should not be transferred.
[26] Ms. Kuca has delivered a form of Notice of Motion. She asks for an extension of time as discussed above. She also asks for an amendment to the notice of appeal to allow her to appeal the arbitration board award dated September 26, 2011. She would also like to add to the appeal claims of discrimination against the union and George Brown College.
[27] I offer Ms. Kuca the following assistance. The proceeding in the Divisional Court is an appeal from the order of Chiappetta J dated January 2, 2013. The only issue is whether the judge was correct in deciding that George Brown College did not violate the arbitration board’s awards when it refused to accept the June 7, 2012 direction to pay into Ms. Kuca’s LPP the two uncashed cheques it agreed to re-issue.
[28] This is an appeal. It is a review of a judge’s final decision. The judge made no decision about the validity of the arbitration award. She also made no decision about allegations of discrimination against the union or George Brown College. These issues cannot therefore be added to the appeal.
[29] If Ms. Kuca wants to try to have the arbitration award reviewed, she will have to look into whether there is an appeal available in the Colleges Collective Bargaining Act, 2008 or perhaps whether she can bring an application for judicial review under the Judicial Review Procedure Act, RSO 1990, c J.1. In either case she will have to contend with the fact that more than a decade has passed since the events.
[30] I note as well that there is a reasoning flaw with bringing the proposed challenges together. If Ms. Kuca says that the arbitration award should be set aside, then George Brown College will not have any obligation to pay her RPP as she asserts. It may be that the award could theoretically be set aside and replaced with something else. But whatever that award would be, it would undermine or render moot this appeal of the order of Chiappetta J.
[31] Similarly, one cannot claim discrimination in an appeal without first suing the person allegedly responsible. Ms. Kuca is of the view that she can sue the union and George Brown College for discrimination as a standalone tort in the Superior Court of Justice rather than bringing a proceeding before the Human Rights Tribunal of Ontario. There are obvious issues with the passage of time, the ability to sue a union, and the question of suing for discrimination alone. But regardless, Ms. Kuca is free to try if she wishes to do so. But that means she has to start a claim in a court or tribunal of first instance.
[32] Ms. Kuca should seek legal advice about her ability to bring proceedings now for such old events. When one sues in Ontario and is unsuccessful, she is likely to be required to pay some or all of the other side’s legal fees. Starting a lawsuit without understanding the risk of paying costs can be a very expensive endeavour.
[33] There is a question of whether I can schedule anything in an appeal where the parties agree the court has no jurisdiction. But section 110 of the CJA expressly allows a court to consider a transfer of an appeal that is already in the wrong court. So I do have authority to schedule a hearing under that section.
[34] Under s.110, there are just two possible outcomes. Either the appeal is transferred to the Court of Appeal or, it is dismissed for want of jurisdiction. This would leave Ms. Kuca free to ask the Court of Appeal to extend the time to allow her to bring an appeal in that court now.
[35] Motions in this court in an appeal are governed by Rule 61.13. That rule directs the parties to the procedures in Rule 37. I told Ms. Kuca to have particular regard to Rule 37.10 to see how to prepare a motion record. She will need a new notice of motion to transfer the appeal to the Court of Appeal under s. 110 of the CJA.
[36] Ms. Kuca knows how to do some research on. She should look for cases that discuss what the court considers when it is asked to transfer an appeal to the Court of Appeal under s. 110 of the CJA. She then needs to find evidence to meet those factors or tests. I can advise her that the issues of delay and whether the appeal from Chiappetta J. has merit will likely be important issues for her to explain in evidence or in submission in a factum. She should also consider whether she would suffer prejudice or harm if the appeal is not transferred and she is left to ask the Court of Appeal to extend the time for an appeal to that court.
[37] Ms. Kuca should also review Rule 61.13 (4) to see the specific requirements for her motion record and factum in this court.
[38] Ms. Kuca shall deliver her motion record under s. 110 of the CJA by May 31, 2024.
[39] George Brown College shall deliver its responding record by August 2, 2024.
[40] Ms. Kuca’s shall deliver her factum by August 30, 2024. George Brown shall deliver its factum by September 13, 2024.
[41] The Registrar is directed to schedule a date for the hearing of this motion to transfer for no more than two hours on a date after September 20, 2024.
[42] We discussed at the case conference giving notice to the union if Ms. Kuca sought relief against it. However, for the reasons discussed above, I do not grant her leave to bring a motion to add the union to this appeal. Her wish to bring a claim against the union has nothing to do with the appeal from the order made by Chiappetta J. that is before this court .
FL Myers J.
Date: March 29, 2024